FOOD DRIVERS INTL. TEAMSTERS UNION

Plaintiff, Food Drivers, Salesmen, Dairy and Ice Cream Workers, International Teamsters Union, Local No. 463, A.F.ofL., seeks to restrain Bennet F. Schauffler, Regional Director for the Fourth Region of the National Labor Relations Board, from conducting an election in accordance with a Direction of the National Board. Plaintiff Union contends that the Board is acting unlawfully and that its action threatens plaintiff with irreparable injury for which it has no adequate remedy at law.

The Board has filed a motion to dismiss, claiming that the court has no jurisdiction to review a representation proceeding, that the complaint fails to show the threat of irreparable injury, that plaintiff has failed to exhaust its administrative remedies, and that indispensable parties to the action are lacking. At the argument on the motion to dismiss, it was agreed that no further hearing on plaintiff's motion for a preliminary injunction would be needed and that, if the motion to dismiss were denied, plaintiff's Exhibits would provide an adequate record for determination of his motion.

' * * * If this proposal is enacted into law it would have serious adverse consequences on collective bargaining. It is conservatively estimated that 1 year would be the average time necessary to obtain court review of a Board certification. The same findings would be reviewable twice: First, under the proposed amendment and, second, through later or simultaneous section 8(5) proceedings under the act if the employer refused to bargain. Delay would be piled upon delay, during which time collective bargaining would be suspended pending determination of the status of the bargaining agent. Such delays can only result in industrial strife.

'The encouragement of litigation at the certification stage of Board proceedings would have a second serious objection. A large proportion of the National Labor Relations Board's elections are conducted by the consent of all parties. If review were made easier through intermediate proceedings parties who desired delay would be greatly stimulated to force the Board to conduct hearings. '

These considerations, while not controlling of course, are relevant in determining whether the statutory review provisions of the National Labor Relations Act, originally and as amended, have diminished the jurisdiction of the district courts. It should also be pointed out, however, on the issue of jurisdiction that it is at least possible that the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., might be determinative; i.e., that the Act provides a remedy where none existed before. Cf. United States ex rel. Trinler v. Carusi, 3 Cir., 166 F.2d 457.

However, upon the facts as alleged in the complaint, I do not feel that it is necessary to pass upon the general question of jurisdiction, for the necessary prerequisites to an action in equity are not met. Cf. International Union of Operating Engineers v. Schauffler, D.C., 70 F.Supp. 868. The action complained of is the unlawful holding of an election, which may result in the decertification of plaintiff Union. 'The order herein sought to be reviewed does not of itself adversely affect plaintiff union except perhaps to put it into a state of apprehension. ' See Klein v. Herrick, D.C., 41 F.Supp. 417, 423. The action, therefore, is premature. Cf. J. F. Quest Foundry Co. v. International Molders and F. Workers Union, 216 Minn. 436, 13 N.W.2d 32; Northrop Corp. v. Madden, D.C., 30 F.Supp. 993. In all three of the cited cases, an election was ordered while a collective bargaining agreement was in force, yet injunctive relief was denied. Cf. also Fitzgerald v. Douds, 76 F.Supp. 597. Moreover, it is doubtful whether even a decertification as a result of the election inflicts the kind of injury for which equity affords relief. It has been pointed out, in the reverse situation, that an order of certification of a fact which may be entirely ignored and disregarded * * * The Company may go on with impunity bargaining with the Association just as though no certification had been made. ' See United Employees Assn. v. National Labor Relations Board, 3 Cir., 96 F.2d 875, 876. Whether the employer in the instant case would attempt to or could repudiate or revise its agreement with plaintiff Union, is a matter that need not be decided now, in advance of the election. Should decertification result, however, it would be relevant to the question of whether there was a real threat at all of injury cognizable in equity.

It is unnecessary to deal with the defendant's other contentions. An order granting defendant's motion to dismiss will be entered in accordance with this opinion.

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